[2018] KEHC 5167 (KLR)
The court found that the Resident Magistrate who tried and convicted the applicant lacked jurisdiction under the Alcoholic Drinks Control Act, as only magistrates above that rank are empowered to hear such cases. Consequently, the entire proceedings, conviction, and sentence were a nullity. Exercising its...
Source-derived case information.
- Citation
- [2018] KEHC 5167 (KLR)
- Parties
- Applicant: John Kirimi Kibara; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 1 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Conviction and Sentence
- Outcome
- application allowed; conviction and sentence set aside; applicant to be released unless otherwise lawfully held
- Judges
- BB Limo
- Legal Topics
- Jurisdiction of Magistrates, Alcoholic Drinks Control Act, Criminal Revision, Illegality of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kirimi Kibara
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Conviction and Sentence
Legal Issues
- 1 Whether the Resident Magistrate had jurisdiction to try offences under the Alcoholic Drinks Control Act.
- 2 Whether the conviction and sentence were valid in law.
Ratio Decidendi
The court found that the Resident Magistrate who tried and convicted the applicant lacked jurisdiction under the Alcoholic Drinks Control Act, as only magistrates above that rank are empowered to hear such cases. Consequently, the entire proceedings, conviction, and sentence were a nullity. Exercising its revisionary powers under Sections 362 and 364 of the Criminal Procedure Code, the High Court set aside the conviction and sentence, ordering the applicant's immediate release unless otherwise lawfully held.
Court Disposition
application allowed; conviction and sentence set aside; applicant to be released unless otherwise lawfully held
Orders
- The conviction and sentence in Marimanti Principal Magistrate's Criminal Case No. 429 of 2017 are set aside.
- The applicant shall be set free forthwith unless lawfully held for another reason.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT CHUKA
CRIMINAL REVISION NO. 1 OF 2018
FROM ORIGINAL CONVICTION AND SENTENCEIN
CRIMINAL CASE NO. 429 OF 2017 OF THE
PRINCIPAL MAGISTRATE'S COURT
AT MARIMANTI
JOHN KIRIMI KIBARA.......................................APPLICANT
VERSUS
REPUBLIC..........................................................RESPONDENT
R U L I N G
This court has considered the application for revision though not dated was filed on 24thJanuary, 2018. The grounds upon which the application is premised are:
(i) The sentence is harsh as the fine is too high to be afforded by the applicant.
(ii) That the applicant has children and a wife who depend on him fof upkeep and shelter.
The Respondent has not opposed this application on a more fundamental ground which is the legality of the sentence given that the matter was tried before a Resident Magistrate contrary to the Law (Section 2 of the Alcoholic Drinks Control Act No. 4 of 2010)which specifically provides that the jurisdiction to try such cases is bestowed upon a magistrate who is a rank above that of a Resident Magistrate. That being the correct position of the law, obviously the proceedings leading up to the conviction of the applicant herein was conducted in appropriately/irregularly before a court bereft of jurisdiction to try matters under Alcoholic Drinks Control Act. This rendered the conviction and sentence a mistrial and under the powers granted to this court under Sections 362 and 364 of the Criminal Procedure Code, this court hereby allows this application and set aside both conviction and sentence handed over to the applicant in the lower court. The applicant shall be set free forthwith unless he is lawfully held. This court however advises the applicant to be of good conduct and avoid committing the same offence in future because next time he may not be this lucky.
Dated, signed and delivered at Chuka this 23rd day of May, 2018.
R.K. LIMO
JUDGE
23/5/2018
23/5/2018
Ruling delivered in the presence of Applicant in person and Respondent represented by Machirah.
R.K. LIMO
JUDGE
23/5/2018